Artz v. Metropolitan Life Insurance

BLAND, P. J. Under the third clause of his contract appellant agreed to pay all the usual and necessary expenses of every kind incident to his agency. It seems from the evidence that the duties he was required to perform made it necessary that he should have an office room. The rent charge, therefore, was an incident to the carrying on of the business of his agency. This he agreed to pay and was bound to pay, unless the evidence is such as to warrant the inference that office rent was not one of the expenses usually borne by an agent of his grade and was not in the minds of either of the parties to the contract when it was entered into. The oral testimony has a tendency to prove that the offices were rented, at the direction of Higginbotham, an agent of respondent of higher rank than appellant, and that after being rented they were recognized and advertised as the offices of respondent. But for the manual book of respondent, by which appellant admits he was bound, the inference might be reasonably [547] drawn that appellant rented the rooms at the instance and re-' quest of the respondent and with the implied promise on the part of respondent to pay the rent. The manual prohibits the incurring of any expense to respondent by appellant unless he was authorized by the written consent of an officer of the company. No authority in writing was given appellant by any officer of the company to rent rooms. Appellant knew the provisions of the manual and admitted that he was bound by it. ¥e must conclude, therefore that he had no authority to rent the rooms at the expense of respondent nor reason to look to the respondent to reimburse him for the rent. His subsequent conduct also negatives the inference that he intended to charge the rent and other items of expenditure in his account to the respondent or expected reimbursement from the company. There being no intention to charge for these expenditures, no implied contract was made out binding on respondent to pay the account for the appellant (Kinner v. Tschirpe, 54 Mo. App. 575), and we conclude under all the evidence the expenditures of appellant were incident to the carrying on of the business of his agency and are embraced in the third clause of his contract. What appellant expected to prove by the excluded evidence is not preserved in the record and it is therefore impossible for us to determine whether it was material or not. Erom the questions propounded the inference is that had the questions been answered the answers would not have been relevant testimony. State v. Martin, 124 Mo. 514. Discovering no reversible error in the record the judgment is affirmed. Judges Barclay and Goode concur.